# FILED
July 18, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON JULY 1997 SESS ION
STA TE OF TENN ESSEE, ) C.C.A. No. 02C01-9608-CC -00269 ) Appellee, ) LAUDE RDALE COUN TY ) VS. ) HON. JOS EPH H. WALKE R, JUDGE ) JOE L. PATRICK, SR. , ) (Aggra vated Sexua l Bat tery) ) Appellant. )

FOR TH E APPEL LANT: FOR THE APPELLEE; TH OM AS T . W OO DALL (a pp ea l o nl y) JOHN KNOX WALKUP 203 Murrell Street Attorney Gen eral and Repor ter P. O. Box 1075 Dickson, TN 37056-1075 ELLEN H. POLLACK Assistant Att orney Gener al GAR Y AN TR IC AN 450 James Roberts on Parkway Distric t Public Defender Nashvil le, TN 37243-0493 C. MICHAEL R OBBINS ELIZABETH T. RICE (at trial and of cou nsel on app eal) Distric t Attorney General Assistant Publ ic Defender 302 Market Str eet 118 East Market Street P. O. Box 302 P. O. Box 700 Somervill e, TN 38068-0302 Somervill e, TN 38068-0700

OPINI ON FI LED:
AF FIRMED
JOE G. RILEY , JUDGE2 O P I N I O N Defendant, Joe L. Patric k, Sr., was conv icted by a jur y in the Laude rdale County Ci rcuit Cour t of the offense of aggrav ated sexual battery and s entenced to eig ht (8) years in the Depart ment of Correcti on. He appeals as of right and presents th e fol lowin g issu es f or ou r revie w: 1. whether

the evidenc e was sufficie nt to support theconvicti on; 2. whether

the victi m was competent to testify about the alleged incident; 3. whether

the victi m’s complaint t o her mother was properly admitted; and 4. w heth er t he tr ial cour t proper ly

ins tru cted the j ury

on th e defe nse o f intox ication. We find no error committed by t he trial cour t; therefore, we AFFIR M the judg ment.

FACTS

At the ti me of this inciden t in January 1995, the female victim was nine (9) years of age. The defendant was her paternal gr

andfather. The state’s

proof indicated that
o n the date in q uestion the defendant ca me to the residenc e of the victi m and he r family shortly

after midnight. The defendant had been dri nking, and the vic tim’s parents allowed t he defendant to stay in the res idence th at evening since the defendant had no other pl ace to go. At approx imatel y 4:0 0 a.m. t he defend ant awoke thechil d vic tim w hen h e touched her “priv

acy” and “ behind.” The v ictim told hi m to stop, and the defendant to ld her not to tell anyone “because I won’t do it anymore.” The victim w

as scared and went to her mother’ s bedroom and knock ed. When her mother asked what

was wron g, thevic

tim re plied “never min d.” Thesame morning before school the v ictim told her mother about the se xual assaul t.3 The de f endant testified in his own defense. He stated he was heavily intoxicat ed that evening and had very little recollection a s to h is activ ities. He, nevertheles s, denied that he sexually assaulted the v ictim.

SUFFICIENCY OF THE EVIDENCE

Defendant first contends the evidence is insufficient to suppo rt the convic tion foraggravated sexual battery. In Tennessee, great weig ht is given to the result reached by the jur

y in acriminal t rial. A j ury verdict accr edits the state's w itnesses and resolves all conflict s in favor of thestate. State v. Bi gbee , 8 85 S.W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal , the state is entitled to thestronges t leg itima te view of the evidence and all reasonable inferences which may

be drawn t herefrom. Id .; State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the presumption of innocence which the appellant enjoyed at trial and raises a presumption of guilt on ap peal. State
v. Grace , 493 S.W.2d 474, 476 (Tenn. 19 73 ). The appellant has the burden of overcoming this presumpti on of guilt. Id

. W here sufficiency of the evidence i s challeng ed, the relevant q uestion for an appellate court is w hether, after v iewing the evidenc e in the lig ht most favorable to the prosecution, any rati onal trier of fact c ould ha ve found the essent ial elements of the crimeor crimes beyond a reas onable doubt. T enn. R. App. P. 13 (e); Jack son v. Virginia , 443 U.S. 307 (1 979); State v. A brams , 935 S.W .2d 399, 401 (Tenn . 1996). The weight

and credibil ity of

the witnes ses' testimony are matters ent rusted exclusively to the jury as

the triers

of fact. Stat e v. Sheffield , 676 S.W .2d 542, 547 (Tenn . 1984); State v. Brewer , 932 S.W .2d 1, 19 (Tenn. Crim. App . 1996). Allowin g th e state the strongest legitimate view of the evidence and all reasonable inferences theref rom, the jury could rationally co nclude beyond a reasonable doubt that the defendant had unlawful sex ual contact w ith the vi ctim who was less than thirteen ( 13) years of age, and the defendant acted intention ally. See Tenn. Code A nn. § 39 -13-5 04(a) (4). The jur y obv iousl y acc redit ed the t estimo ny of4

the victi m. The evidence was sufficient to support the v

erdict.

COMPETENCY TO TESTIFY

Defendant contends the tr ial court er red in de nying hi s pre-tri al motion to dismiss the indictment b ased upon the victi m’s incompetency to testify ab out the alleged assault. More speci fically, t he defendant contends that the victim’ s testimony at the first tri al, whic h concluded w ith a deadlocked jury, reveals that the victim did not have sufficient personal knowledg e to testify a bout the alleged assault. See Tenn. R. Evid. 602. Defendantalleges t hat the victi m’s testimony at the first tr ial indicat ed her uncertainty

as to wheth er or not thi s was a dr eam. First ly, we note that

the proper method of attacking lackof pers onal kno wledge
as set forth in Tenn. R . Evid. 602 is not pursuant to a pre-tr ial motion to di smiss the indictment. The i ndictment is not faulty. Seco ndly, our revi ewof the victim’s testimony at the first tri al and the insta nt trial does not indicate a lack of personal knowledg e under Tenn. R. Evi d. 602. As noted bythe trial j udge in overruling the motion to dis miss, it was primaril y a quest ion for the juryas to wheth er the offense occurred or whether the victi m dreamed the event . At the insta nt tri al the vic

tim in siste d the event occ urred and w as not a dream

. This issue is wit hout merit. HEARSA Y STATEMENTS
During the direct ex

amination of the chil d victim, the prosecutor asked her

if she told anybody a bout this inci dent the next day after it occur red. The victim t estified that sh e told her mother . The victi m did not testify as to what, in fact, she d id tell he r mother. The state also el icited from the v ictim’s mother during her

direct examination that the child reported the inci dent to her the morning after its occu rrence. Again, there
was no testimony

as to the details

of the complaint. The trial court instructed the jury that this testimony was to be considered only for corroborative purpos es relating to the credibili ty

of the v icti m. Defendant contends t he testimony of thevictim a nd her mother5

consisted of inadmissible hearsay pur suant to Stat e v. Livi ngston , 907 S.W.2d 392 (Tenn. 1995). The Tennessee Supreme Cou rt abolished the fre sh complaint doctrine as it applies to child v ictims. See State v. Li vingst on , 907 S.W.2d at 392. Similarlyto adult victims, the fresh complai nt doctrine had been used to admit st atements made by child vic tims after

sexual abuse as confirmation of their credibili ty. See Stat e v. Bro wn , 871 S.W.2d 492, 493 ( Tenn. Crim. App. 1993). Sinc e juries would not likel y make the
same presumptions w hich justify the retention of

“fresh complaint” with adult victims, the C ourt abolished the fresh complaint doctrine entirely and held it did no t applyt o cases involv ing chil d victims of abuse --- s exual or non-sexual. Living ston , 907 S.W.2d at 399. Nevertheless, the Court noted that evi dence in the nature of fresh complaint maybe admissible as

(1) substant ive ev idence if it sat isfies some hears ayexception, and (2) corroborative evidence if it satisfies the prior consistent stat ement rule. Id . at 395. Living ston concerned the admi ssibilit y of testimony

of a third party

who testi fied
as to the vic

tim’s statements . In the case sub judice the defendant first attacks the testimony

of the victi m herself to the e ff ect t hat s he re port ed th e inc iden t. Fir stly, we note that it is questionable whether this testimony was hearsay since it w as not introduced to pr

ove the trut h of the matter asser ted. See

Tenn. R. Evi d. 801(c). Even if it was he arsa y, however , its admissi on was cl early har mless. Duri ng the
cross-examination of the victim by defense counse l, it was implied that the victim fabricated this allegation since it was only a dream. Although a prior consi stent statementis not admissible on direct examination absent an impeaching atta ck on that test imon y, see Sta te v. Mee ks , 867 S.W.2d 361, 374 (Tenn. Crim. App . 1993), the tes timon yclearly

would have been admissibl e on re-direct examinati on as a prior consistent

statement. If the tes timony was hearsay and erroneously admitted on direct examination, it was har mless beyond a reasonable doubt. The testimony of the victim’s mother is def initely co n troll ed by Living ston . As noted, however , the child v ictim’s tes timony had been s ubjected to an al leg ation of fabrication bef ore the mother tes tified. Her t estimony was properly admitted for6

corro bora tive purposes as a prior co nsistent statement, and the trial judge so instructed the jury

. State v. Li vingst on , 907 S.W .2d at 395. This issue is without merit.

JURY INS TRUCTION ON INTOXIC AT ION

Defendant finally contends the trial court erred in refusing his w ritten req uest for a jury i nstruction relating to i ntoxicati on. We disagree. The sp ecial request submitted by defen se counsel came from T.P.I. - Cr im

. 40.02 (4th ed. 1995). However, defense co unsel omitted vari ous portions of the pattern charge. The trial court gave this pattern charge which inclu ded ce rtain language omitted by defe nse cou nsel. Th e jury charge as given by the trial judge was correct in all respec

ts. This iss ue is wi thout merit.
The judgment of the trial court is AFFIRMED.

JOE G. RILEY , JUDGE

CONCUR: JOE B. JONES, PRESIDING JUDGE

DAVID H. WELLES, JUDGE